Law Times

LaW TIMeS • NOVeMBeR 23, 2015 Page 9 www.lawtimesnews.com Saxe gearing up for new role as commissioner Environmental lawyer wraps up 25-year private practice to take new job BY YAMRI TADDESE Law Times n a crisp Friday morn- ing in October, en- vironment lawyer Dianne Saxe sits on a couch in her home office in Toronto's Forest Hill neighbour- hood. At the time, she was in the midst of wrapping up a 25-year private practice to start a new job in December as Ontario's envi- ronmental commissioner. "It's a big thing to give up and walk away from after building it for 25 years, but this [new job] is such an opportunity, privilege, and honour," she says as her dog, Spirit, lies on a blue rug nearby. Saxe has been an environ- mental lawyer for nearly 40 years, working first at the Ministry of Energy, the Ministry of the En- vironment, and the Ontario En- ergy Board, and then in private practice since 1989. In those years, she has represented almost a thousand clients and has carved a reputation as a pre-eminent voice on environmental law in Canada. Saxe replaces long-time envi- ronmental commissioner Gord Miller. One of her priorities as she takes that office, she says, is to simply "make it matter." "It's extraordinary that after 22 years, most knowledgeable, well- informed, English-speaking peo- ple in Ontario who are concerned about environmental issues have never heard of the environmental commissioner or the [Environ- mental] Bill of Rights," she says. "Hearing about the office is one thing; making use of it is an- other. That is my second goal: to make it usable," she adds. Two months before she takes office, she's busy working with her 24-member team on the is- sues they'll tackle. The work can't wait until her official start in De- cember, she says, especially given that she's heading to Paris for the climate change conference as part of the Canadian delegation. "Since climate change is one of my mandates and our past federal government was an international pariah on this issue, going to Paris with a new government that un- derstands and recognizes the im- portance of climate change has got to be different," she says. "Ten years ago, Canada had an oppor- tunity to be a leader in the area. For 10 years, we've been a pariah." With little appetite from the last federal government for action on climate change, the provinces have taken their own measures individually, says Saxe, adding the opportunity to act federally is slimmer now than it was 10 years ago. As Ontario moves ahead with a cap-and-trade system, Progres- sive Conservative MPP Michael Harris says Saxe's oversight role is even more important. "Her oversight on how the government rolls out the cap-and-trade system will be significant," he says. "We see in Europe, cap-and-trade systems have been fraught with fraud and a whole bunch of things, so her oversight on this is going to be critical." The premise of the office of the environmental commissioner, a position created in the 1990s, is that the issue of the environment is too important to leave to the government alone. In her role as commissioner, Saxe will oversee the province's compliance with the Environmental Bill of Rights, a document that seeks to protect the environment and increase public participation on decisions that affect it. But if some environmental lawyers and activists have it their way, the first thing Saxe would do is push for a review of the very statute that created her office. "Essentially, [the bill of rights] needs to go from being proce- dural rights to encompassing substantive rights, and particu- larly incorporating the right to a healthy environment," says Dev- on Page, the executive director of Ecojustice, who calls Saxe "an im- minently qualified" person for the job of commissioner. "The main shortcoming of that act is that it is procedurally focused. If you divide it between procedural and substantive, procedural would be the right to know about something that threatens you. Substantive right would be the right to challenge or seek redress in the courts for harm done to you," says Page. It's a viewpoint Theresa Mc- Clenaghan, executive director and counsel at the Canadian En- vironmental Law Association, shares. The province granted the association's request for a re- view of the Environmental Bill of Rights at least three years ago but it still hasn't gone ahead with it, she notes. Saxe says changing the bill is within the purview of the govern- ment but she suggests that if there were an appetite to amend the leg- islation, she'd have to think hard about whether she'd personally support the addition of a substan- tive right. "A substantive right can do a number of good things but it can only move decision-making on public and financial issues to the courts from the government," she says. "I can assure you that I often disagree with what the govern- ment is doing [and] I can also assure you that I've often dis- agreed with what the courts have done on environmental is- sues. To use a very general over- generalization, judges generally didn't like science in high school and generally didn't work with it during their careers . . . and they don't have a support structure of people with knowledge in economics, environment issues, and so on. Not all decisions are best made in the courts." Although she's not against the idea, she says it's not obvious to her that a substantive right is a good move. Besides her work as a lawyer, Saxe is president of WindShare, an organization that describes itself on its web site as "an in- novative, for-profit wind power co-operative." Her support for wind turbines rubs some activists the wrong way. A web site called Ontario Wind Resistance claims Saxe "loves turbines and trashes anyone who dares to object to them on her blog" and raises ques- tions about whether she'll be "an unbiased commissioner." Saxe says she has a lifelong commitment to renewable en- ergy but she notes that questions around whether to build indi- vidual wind projects or where to locate them wouldn't be up to her to decide once she takes office. "Those decisions are all made in the first instance by the Min- istry of the Environment and in the second instance by the Envi- ronmental Review Tribunal and the courts," she says. Members of the public can bring a request for reviews of projects, says Saxe, but her of- fice doesn't decide on them. If a particular wind turbine project is breaching its approval and a member of the public brings a complaint, her office will make sure the ministry receives it and track when and how it responds to it, she adds. "We don't have a gatekeeper function. We don't say, 'Oh, we don't like this complaint, so we're not forwarding it.'" On occasion, the office will criticize government's handling of reviews or complaints and will sometimes take a position on is- sues of public importance. It's quite likely some of those com- plaints would be against clients Saxe has represented in the past. But she says she foresees no prob- lems around conf licts. "I have worked for a large part of the Ontario economy at one time or another," says Saxe. "I've worked for a lot of peo- ple on many issues. That's what gives me the expertise to do the job. I have duties of confidenti- ality to the clients. To the extent that I have confidential infor- mation, that stays confidential. I don't expect that to have any impact on my job. As I tried to indicate, I'm not the ministry, nor am I the tribunal." Saxe has in the past spoken out in favour of the polluter-pay principle in cases of environmen- tal contamination. Ontario cur- rently has a policy that she says is forcing innocent people to pay for cleanups, something she calls FOCUS We are a law firm that combines experience, leadership and teamwork. We align best practices with flexibility and pragmatism. We have an innate appreciation for each client's unique challenges. If this sounds like the right fit for you, you've discovered Right-sized Thinking®. Find out how this approach can assist you. Not too big. Not too small. Right-sized Thinking® • 1-800-323-3781 • pallettvalo.com Your Authority For: Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts O Dianne Saxe says she's not sure whether she's in favour of adding procedural rights to the Environmental Bill of Rights. Photo: Yamri Taddese See New, page 12

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